OUR VIEW: Civilian criminal courts best place for accused bomber

Wednesday

Apr 24, 2013 at 4:00 AM

Some members of Congress have been agitating for the Obama administration to declare accused Boston Marathon bomber Dzhokhar Tsarnaev an enemy combatant and have him tried before a military tribunal instead of a civilian criminal court.

This would be a mistake on several counts.

The federal criminal courts have a long and successful track record in prosecuting terrorism cases. The military tribunal is a work in progress, whose proceedings at Guantanamo Bay, Cuba, are largely secret and seemingly subject to outside meddling.

The verdict of a U.S. criminal court would be accepted here and abroad as just and fairly arrived at. The verdict of a military tribunal would be regarded with great skepticism and subject to endless challenge.

On Monday, Tsarnaev, 19, was charged with using, and conspiring along with his dead brother to use, a weapon of mass destruction that killed three people and wounded more than 170 others. He faces the death penalty or life imprisonment.

He also faces state murder charges in the murder of a Massachusetts Institute of Technology police officer.

By designating Tsarnaev an enemy combatant, the government could, with some creative twisting of the law, try to hold him indefinitely without benefit of counsel or the right to be taken before a judge. The government tried this once before, in the case of alleged "dirty bomber" Jose Padilla, only to be slapped down by the Supreme Court.

Dzhokhar Tsarnaev has lived in this country since age 10 or 11; he became a naturalized citizen in 2012. If being an American citizen means anything, he is entitled to all the rights that go with that citizenship, including his Miranda rights.

Under the Miranda Rule, Tsarnaev must be informed that he is entitled to a lawyer and he is not required to talk to law enforcement. Prosecutors debated how long they could hold off reading him those rights under an exception involving a concern for public safety, meaning Tsarnaev might have knowledge of immediate threats to life.

But Monday evening, after a brief interrogation by FBI agents and after a doctor and a federal magistrate determined that he was capable of understanding his rights, the magistrate read him those rights in the presence of two U.S. attorneys and three public defenders. Clearly, the government is determined that there will be no procedural missteps.

A throat wound has limited Tsarnaev's ability to speak, but he nodded that he understood what the magistrate was telling him. He spoke only once, replying "no" to the question of whether he could afford a lawyer.

This means he will be provided public defenders and, because he faces the death penalty, two defense lawyers who specialize in capital-murder cases.

Law-enforcement officials say they have enough to convict him even without a confession. A detailed FBI affidavit filed along with the criminal complaint, which will be the basis for his trial, indicated that might well be so.

There might not be a trial, or a death penalty, if Tsarnaev agrees to answer all the government's questions: Were others involved in the plot, and, if so, who are they? Who convinced him to turn against a country that gave him asylum? And what did he hope to accomplish by trying to slaughter his new countrymen?

His written explanation, that the terror bombings were done for religious reasons, is both uninformative and inadequate.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.